Fallout from Stewart’s Terrorism Charges

The Feb. 10 conviction of longtime radical attorney Lynne Stewart on terrorism charges has sent shock waves through the defense bar, which was certain Stewart would prevail against what amounted to a government witch-hunt. Stewart and her co-defendants Abdel Sattar and Arabic interpreter Mohammed Yousry face up to 30 years in prison when they are sentenced in July.

“The government is bent on intimidating attorneys who provide zealous representation to unpopular clients,” said National Lawyers Guild (NLG) President Michael Avery.

Asked if his practice had changed since the verdict, NLG attorney Daniel Scott said “Yes, because my head has changed. The more they expand the definition of terrorism, everybody’s suspect.”

Stewart expressed faith in the jury throughout its four weeks of deliberations while still bringing with her two suitcases in the awful chance she was convicted and bail not granted. After the conviction, she criticized herself for brash talk that “couldn’t have endeared herself to the jury,” such as calling her former client’s prosecutor Patrick Fitzgerald “evil.” But at trial, her statements came across as measured, well-thought-out and circumspect. She showed herself to be knowledgeable about world politics and history, and a very dedicated attorney who didn’t sever ties with her clients immediately after a conviction.

In truth, it was a very difficult case to defend, as the prosecutors had all of their evidence gathered in advance. They were able to clearly show that Stewart had signed a promise not to let her client, the blind Egyptian Sheik Omar Abdel Rahman, communicate with the outside world; and they were able to take statements she made in private to her imprisoned client out of context. This allowed them to get a grand jury to indict Stewart and her translators. An early and major trial victory for Stewart was the ruling that the entire conversations must be read to the jury so as to provide necessary context. Ultimately, the jurors must have believed there was a possibility of the Sheik’s followers engaging in violence to free him, even though the prosecution couldn’t cite any such acts. To have acquitted her, the jury would have had to conclude that there was a contradiction between Stewart’s moral duty to her client and what the law permitted her to do. As one blogger put it, “If the law is unconstitutional (the defense attorneys may not talk to the press, the prosecution may talk all it wants) then I think the defense attorney unfortunately doesn’t have a choice but to break the law.” Apparently that conclusion was too much to expect of a jury who sat in lower Manhattan.

Although Stewart’s conviction is tragic, the conviction of Mohammed Yousry rests on far less evidence. Yousry was an assistant professor at York College and a non-practicing Muslim who the Sheik on occasion glared at and scolded. Unlike Sattar, he had no role in the transmissions of any communications except those Stewart specifically approved. (Sattar, it turned out, wrote the fatwa calling for the killing of Jews, and the Sheik refused to renounce it, once issued.)

As Yousry stated in an interview, he had previously worked for nightly network news as an Arabic translator, and was once asked to translate a statement made by Osama bin Laden for NBC. All the government could say in closing was, “Well, he didn’t have to translate for this client, Sheik Rahman. He shouldn’t have been there.”

Long-time Brooklyn criminal defense attorney Jerome Karp said that the Stewart verdict is “very disconcerting” to the defense bar. Jerome Karp said “It’s chilling to know the government was listening in to an attorney-client conversation with impunity.” He elaborated, “One might disagree with Stewart’s actions, if the prosecution’s allegations are true, but to violate the attorney-client privilege is unforgivable. It strikes at the heart of our system.” Stewart’s supporters have begun a second major organizing drive and defense committees have been established in a number of major cities. Organizers look to win support for her among both the public and prestigious groups like bar associations.

Stewart has retained Joshua Dratel, coauthor of The Torture Papers: The Road to Abu Graib as her appeals counsel. Stewart told The Indypendent, “We have a tremendous record, thanks to Michael Tigar (who withdrew due to health problems). We have nearly a motion made a day.”

Among the issues Stewart plans to raise are the constitutionality of the Special Administrative Measures and the violation of attorney-client privilege. Former New Jersey Superior Court Judge Andrew Napolitano wrote after the conviction, “In the good old days, only Congress could write federal criminal laws. After 9-11, however, the Attorney General was allowed to do so. Where in the Constitution does it allow that?